Month: June 2018

The UK has been accused of failing in its international obligations after refusing to extradite Mr Harris Binotti to Myanmar where he is accused of murdering his work colleague in an apartment in Yangon. The UK Home Office has explained that it has refused to extradite Mr Binotti because the UK does not have an extradition treaty with Myanmar and Mr Binotti would face a real risk of having his human rights breached if the extradition were to take place.

In response to the Home Office decision, Zar Li Aye, an adviser for the International Commission of Jurists, said that Burmese law included an obligation on judicial authorities to extradite or prosecute and therefore the obligation fell to British authorities to prosecute Mr Binotti in the UK. Consequently, according to Mr Aye, by not prosecuting Mr Binotti the UK is allowing a jurisdictional gap.
Mr Binotti, originally from Dumfries in Scotland, remains subject to an INTERPOL Red Notice which allows law enforcement authorities on the database to arrest him.

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This week the CJEU Advocate General, Evgeni Tanchev, issued an opinion which concluded that the Irish High Court was correct to postpone the extradition of Artur Celmer to Poland. The Irish High Court postponed the extradition due to concerns about the Polish government’s interference with the judiciary. Mr Tanchev also pointed out that this did not mean that all Polish extradition requests should be rejected and that in this case it would be for the Irish court to establish all the facts to see if Mr Celmer was indeed able to have a fair trial.

This opinion was issued in light of the European Union’s recent launching of an Article 7 case against Poland for what the European Commission calls the “systematic” undermining of the Polish judiciary and the rule of law. In December last year, under Article 7 of the Treaty on European Union, the European Commission asked the EU Council of Ministers to explore if the changes to the Polish justice system meant there was a clear risk of a serious breach of the rule of law by Poland.

Mr Tanchev explained that European Arrest Warrants must not be executed if there was a real risk of a “flagrant denial of justice” due to any deficiencies in the justice system of the issuing Member State. He added that there would also have to be clear evidence that the person being extradited was exposed to such a risk. To postpone an extradition there needs to be a real risk of a flagrant denial of justice. Establishing a risk to the right to a fair trial is not enough because the right to a fair trial could be subject to limitations, so long as those limitations respected the essence of that right. Therefore, the executing judicial authority was required to postpone the execution of an arrest warrant only if there was a real risk of a breach of the essence of the right to a fair trial.

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Alexander Vinnik has been imprisoned in northern Greece since last summer. He was originally arrested after the US requested his extradition to face charges of laundering more than $4 billion on a bitcoin trading platform. This week France joined Russia and the US who are already competing to have Vinnik extradited. French authorities would like Vinnik extradited so he can face cybercrime, money-laundering and extortion charges. The Supreme Court of Greece has already ruled in favour of extraditing him to the United States, but another lower Greek court ruled for his extradition to Russia. The case is ongoing, but it will be the Greek Justice Minister who has the final word on Vinnik’s extradition.

This week the Irish Supreme Court rejected the appeal of Mr Gary Davis who sought to prevent his extradition to the US to face a trial on charges of conspiracy to distribute narcotics, conspiracy to commit computer hacking and conspiracy to commit money laundering. The US alleges that Mr Davis was an administrator on the Dark Web drug website, Silk Road. If he is convicted in the US, he could receive a sentence of life imprisonment.

Mr Davis appealed to the Irish Supreme Court and urged the judges to refuse the request to extradite him on grounds including that he suffers from Asperger’s Syndrome.
Yesterday the Supreme Court rejected his appeal, the five judges explained that they were satisfied that Mr Davis had not established that there was a real risk that his fundamental rights would be infringed if extradited to the US.
The Irish Supreme Court had been asked to consider questions of general public importance. These included:
1. In the context of an extradition hearing, is the State constitutionally obliged to protect vulnerable persons suffering from mental illness and in what circumstances under that duty, should an extradition request be refused?
2. Is Mr Davis’s Asperger’s syndrome so severe that he should not be extradited to the US on the basis that he would suffer mental harm as a result of being imprisoned and having very little contact with his family?

The Irish Supreme Court concluded that there is a constitutional obligation on the State to protect all persons in the context of an extradition application, and not just those suffering from mental illnesses. However, it is for the person whose extradition is sought to establish that there are substantive grounds for believing that if extradited there is a real risk of being subjected to degrading behaviour in breach of Article 3 ECHR. Having reviewed all the evidence, the Supreme Court found that Mr Davis had not demonstrated such a risk. Additionally, the court added that this case was to be distinguished from the UK Supreme Court decision in the Lauri Love case because in Mr Love’s case the evidence of his Asperger’ Syndrome was much stronger regarding the effect on his mental health and the risk of suicide if extradited. The Irish Supreme Court contrasted this to Mr Davis’s case where there had been an absence of evidence that Mr Davis had undergone treatment or counselling for depression or anxiety. He had also not seen a specialist for therapy for his Asperger’s Syndrome.

After handing down their decision, the Irish Supreme Court granted Mr Davis’ lawyers a 48-hour stay on his surrender to allow his lawyers advise him on the judgement and to consider a possible referral of the case to the European Court of Human Rights.

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This week Mr Rodrigo Dinardi Vicentini attended Brazil’s World Cup group stage match in Russia where he was promptly arrested by Russian authorities and may face extradition back to Brazil. Mr Vincentini has been flagged by INTERPOL as wanted by the Brazilian authorities since 2017. He is accused of being involved in the robberies of a number of Brazilian post offices and could face up to 50 years in prison if he is convicted upon his return to Brazil.

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Last week, a former adviser to President Putin, Dr Alexander Alexandrovich Shapovalov, had his extradition to Russia blocked by Edinburgh Sheriff Court. Dr Shapovalov’s extradition was requested by Russia because he has been convicted of fraud and sentenced, on appeal, to 9 years and 10 months imprisonment. Dr Shapovalov’s lawyers argued that the fraud charges were ‘trumped up’ and that he faced an unfair prosecution, a risk of torture if he was imprisoned in Russia and other breaches of his human rights. Sheriff Ross accepted that Dr Shapovalov did not receive a fair trial and criticised the Russian Federation’s justice system explaining that if Dr Shapovalov were extradited to Russia he would face unfair prosecution, possible torture and inhuman conditions in the Russian prison system. Sheriff Ross dismissed the evidence from Russia as ‘poor quality, inadequate and misdirected.’

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Yesterday, Greek Prime Minister Alexis Tsipras explained that he did not promise Turkish President Recep Tayyip Erdoğan that he would extradite eight former Turkish soldiers who left Turkey after the attempted coup in 2016. Mr Tspiras went on to explain that he understands that the separation of powers in Greece is vital and that it would not be for him to say whether the men would be extradited because that was a matter for the juridical authorities.
The eight soldiers in question arrived in Greece aboard a military helicopter, hours after the coup failed in July 2016. In January this year, the Greek Supreme Court ruled against extraditing the former soldiers, who were released in another ruling last week. In response to the decision to release the soldiers, Turkey suspended its bilateral migrant readmission deal with Greece.